Of Course the Government Wants to Read Your Texts

Megan McArdle is a Bloomberg View columnist. She wrote for the Daily Beast, Newsweek, the Atlantic and the Economist and founded the blog Asymmetrical Information. She is the author of "“The Up Side of Down: Why Failing Well Is the Key to Success.”Read More.

Imagine, if you will, a law that said all doors had to be left unlocked so that the police could get in whenever they needed to. Or at the very least, a law mandating that the government have a master key.

That's essentially what some in the government want for your technology. As companies like Apple and Google have embraced stronger encryption, they're making it harder for the government to do the kind of easy instant collection that companies were forced into as the government chased terrorists after 9/11.

And how could you oppose that government access? After all, the government keeps us safe from criminals. Do you really want to make it easier for criminals to evade the law?

The analogy with your home doors suggests the flaw in this thinking: The U.S. government is not the only entity capable of using a master key. Criminals can use them too. If you create an easy way to bypass security, criminals -- or other governments -- are going to start looking for ways to reproduce the keys.

Or consider another case cited by the Times, in which the government is trying to get Microsoft to give up messages stored on a server in Ireland. With today's global networks, it's frustrating how easily criminals can move things out of reach of the law. On the other hand, do we want the law to have farther reach? It might be kind of frightening if other governments, with weaker civil liberties protections, could get access to any of our messages, just by getting an order from their local court.

It's not that the government is wrong about the frustrations. Law enforcement has always had to deal with the problem of criminals who flee the jurisdiction. Over time, things like extradition agreements have reduced that problem to a largely manageable level. But physically removing themselves from the area is very costly for the criminal, who loses the ability to travel freely, to see family and friends, to access assets left behind in the United States. Moving your messages to a foreign server, on the other hand, requires little in the way of strenuous effort. As the cost of moving evidence beyond an investigator's reach goes down, the cost of an investigation goes up -- even if the foreign courts are cooperative, and they often are, you still have to file a case under different laws that may not map particularly well onto yours.

That's a serious problem that law enforcement is trying to solve. But when law enforcement officials try to solve serious problems, they often end up creating some serious new ones for the citizens they are trying to protect.

Take laws against structuring transactions to get around bank reporting. Laws requiring banks to report transactions over a certain size were designed to solve serious problems, like tax evasion and money laundering by nasty criminal organizations that do terrible things. Unfortunately, they also created hassles for ordinary folks who were just running their 7-11 and minding their own business. People -- both criminals and ordinary citizens -- learned how to "structure" transactions to keep them below the reporting cutoff. So now you have to make a law against structuring transactions. And suddenly folks against whom no other crime can be proved are liable to have their bank accounts seized because they ... made too many small deposits.

That's crazy. But it's hypertrophic logic of law enforcement.

So too with these new issues. Law enforcement is going to pursue strategies that maximize the ability to catch criminals or terrorists. These are noble goals. But we have to take care that in the pursuit of these goals, the population they're trying to protect is not forgotten. Every time we open more doors for our own government, we're inviting other unwelcome guests to join them inside.

I don't really blame law enforcement for pushing as hard as possible; rare is the organization in history that has said, "You know, the world would be a better place if I had less power to do my job." But that makes it more imperative that the rest of us keep an eye on what they're doing, and force the law to account for tradeoffs, rather than the single-minded pursuit of one goal.

Of course, those tradeoffs have to be counted both ways. It's a bad thing when child pornographers, terrorists and murderous cartels get away with their activities. The harder we make things for law enforcement, the easier it will be for their targets to continue to do some really bad things. But criminals are not the only people in the world. They're not even the majority. Though if we follow law enforcement's hypertrophic logic, casting an ever-wider net of ever-finer mesh, a majority of people may be caught up in it.

Megan McArdle is a Bloomberg View columnist. She wrote for the Daily Beast, Newsweek, the Atlantic and the Economist and founded the blog Asymmetrical Information. She is the author of "“The Up Side of Down: Why Failing Well Is the Key to Success.”Read more